[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments
You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> IA211202012 [2014] UKAITUR IA211202012 (4 March 2014) URL: http://www.bailii.org/uk/cases/UKAITUR/2014/IA211202012.html Cite as: [2014] UKAITUR IA211202012

[New search] [Printable PDF version] [Help]

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: IA/21120/2012

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Sent on:
On 27 February 2014	On 4 March 2014

 

 

Before

 

UPPER TRIBUNAL JUDGE STOREY

 

 

Between

 

MR MD IKBAL HOSSAIN

 

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

 

Representation

For the appellant: Mr M Hossain instructed by Hossain Law Associates

For the respondent: Mr S Walker

 

 

DETERMINATION AND REASONS

 

1. In this case the party who was the appellant before the First-tier Tribunal is a citizen of Pakistan. It is convenient if I continue to refer to him throughout as “the appellant” in the remainder of this determination except where context requires otherwise.

 

2. The appellant entered the United Kingdom with valid leave to enter as a student. On 2 April 2012 he applied for further leave to remain as a Tier 1 (Post Study Work) Migrant within the currency of his valid leave. On 28 September 2012 the Secretary of State refused that application. The refusal decision pointed out, inter alia, that in order to score points under the relevant provisions of the Immigration Rules the appellant was required to show they had been awarded a relevant eligible qualification within the 12 month period directly prior to the application, whereas the position was that the appellant had not been awarded his qualification, an MBA from the University of Wales until after that date (on 14 August 2012).

 

3. In December 2012 the First-tier Tribunal had dismissed the appellant’s appeal. Permission to appeal was then granted to the Upper Tribunal.

 

4. On 14 March 2013 Upper Tribunal Judge Perkins decided, on the basis of the Khatel decision, that the First-tier Tribunal had erred in law, that its decision should be set aside and that he should re-make the decision allowing the appeal.

 

5. In response to the determination of Upper Tribunal Judge Perkins, the Secretary of State applied for permission to appeal to the Court of Appeal.

 

6. On 25 June 2003 the Court of Appeal gave judgment in Raju and others v Secretary of State for the Home Department [2013] EWCA Civ 754. In October 2013 the Upper Tribunal reported its decision in Nasim and others (Raju: reasons not to follow?) [2013] UKUT 610(IAC). In January the Upper Tribunal reported its follow-up case of Nasim and others (Article 8) [2014] UKUT 25 (IAC). It will be convenient if I refer to these below as “Nasim I” and “Nasim 2” consecutively.

 

7. In light of these developments the Upper Tribunal sent Directions in this case. These gave notice that issues to be considered at the hearing included: (i) whether the determination of the Upper Tribunal made by reference to the determination in Khatel should be set aside in the light of the judgment of the Court of Appeal in Raju and others (reference was then made to Nasim I) and (ii) if so, whether there was an error of law in the determination of the First-tier Tribunal such that the determination should be set aside. The Directions also required the appellant to serve on the Tribunal and the Secretary of State, not later than 7 days before the forthcoming hearing, all written submissions and written evidence (including witness statements) on the issue of Article 8 of the ECHR, upon which they seek to rely at that hearing (where necessary, complying with rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

8. The head note to Nasim I states as follows.

 

(1) It is not legally possible for the First-tier Tribunal or the Upper Tribunal to decline to follow the judgment in Raju and others v Secretary of State for the Home Department [2013] EWCA Civ 754 on the basis that the Secretary of State’s Tier 1 (Post-Study Work) policy of July 2010 (concerning the approach to be taken to “late” submission of certain educational awards) continued to apply in respect of decisions taken by the Secretary of State on or after 6 April 2012, when the Immigration Rules were changed by abolishing the Tier 1 PSW route.

 

(2) The Secretary of State was under no duty to determine Post Study Work applications made before that date by reference to that policy, the rationale for which disappeared on 6 April. In particular:

 

(a) a person making such an application had no vested right or legitimate expectation to have his or her application so determined;

 

(b) it was not legally unfair of the Secretary of State to proceed as she did;

 

(c) the de minimis principle cannot be invoked to counter the failure of applications that were unaccompanied by requisite evidence regarding the award;

 

(d) the Secretary of State’s May 2012 Casework Instruction did not gloss or modify the Immigration Rules but merely told caseworkers to apply those Rules;

 

(e) evidential flexibility has no bearing on the matter;

 

(f) an application was not varied by the submission of evidence of the conferring of an award on or after 6 April 2012; but even if it were, the application would fail on the basis that it would have to have been decided under the Rules in force at the date of the variation; and

 

(g) an application under the Immigration Rules falls to be determined by reference to policies in force at the date of decision, not those in force at the date of application.

 

 

(3) The date of “obtaining the relevant qualification” for the purposes of Table 10 of Appendix A to the Immigration Rules as in force immediately before 6 April 2012 is the date on which the University or other institution responsible for conferring the award (not the institution where the applicant physically studied, if different) actually conferred that award, whether in person or in absentia.

 

(4) As held in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC), section 85A of the Nationality, Immigration and Asylum Act 2002 precludes a tribunal, in a points-based appeal, from considering evidence as to compliance with points-based Rules, where that evidence was not before the Secretary of State when she took her decision; but the section does not prevent a tribunal from considering evidence that was before the Secretary of State when she took the decision, whether or not that evidence reached her only after the date of application for the purposes of paragraph 34F of the Immigration Rules.

 

Submissions

 

9. I need only note here that Mr Hossain for the appellant sought to argue that I should decline to follow Nasim I and II; that I should find that the decision of the Secretary of State was contaminated b y unfairness particularly given the fact that the case had been going on for two years and the reversal of the law effected by Raju and others should not be allowed to have what was in effect retrospective effect. He also raised as a preliminary point that I should decline to exercise my discretion to set aside the decision of the Upper Tribunal and instead let the case proceed as one in which there was an outstanding application for permission to appeal to the Court of Appeal. He asked that I reconsider Article 8 bearing in mind that the appellant had been law-abiding. Mr Walker for the respondent sought to rely on Nasim I and II.

My assessment

 

The power to set aside

 

10. As noted earlier, prior to this case been listed for hearing the Secretary of State had applied for permission to appeal to the Court of Appeal. However, the Tribunals, Courts and Enforcement Act 2007 and the Tribunal Procedure (Upper Tribunal) Rules 2008 made hereunder clearly contemplate that it is within the jurisdiction of the Upper Tribunal to set aside its decision in particular limited circumstances: see s.10(4)(c)) rules 45, 46. Logically a decision on whether to exercise such power must take place before any consideration of whether to grant permission to appeal to the Court of Appeal; and indeed rule 45(1) stipulates that on receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46. If the decision of the Upper Tribunal is set aside, then there is no longer any statutory basis for consideration of whether to grant permission to appeal. The decision sought to be appealed has been rendered null and void.

 

11. Rule 45(1)(a) provides that the Upper Tribunal may review a decision of the Upper Tribunal if ”since the Upper Tribunal’s decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal’s decision, could have had a material effect on the decision”. As noted earlier since the Upper Tribunal decision in Khatel there has been the judgment in Raju and others, which constitutes binding Court of Appeal authority overturning Khatel.

 

12. Hence I am entirely satisfied that it is within my powers to proceed to consider whether to set aside the decision of the Upper Tribunal and I also consider that it furthers the overriding objective of the Rules to deal with cases justly and fairly under rule 4. In this regard I note that the procedure adopted by the Tribunal of notifying the parties in advance of the hearing that it would consider whether to exercise its powers to set aside afforded both parties ample opportunity to respond and address the point.

 

13. I have been asked to take a different view from that taken by the Upper Tribunal panel in Nasim I and II. Whilst it is true in the abstract that I am not bound to follow a reported decision of this Chamber, I would only consider doing so if there were compelling reasons. Quite simply there are none here. In any event, for the most part Nasim I gives effect to Court of Appeal authority, Raju and Others in particular, by which I am bound.

 

The Immigration Rules

 

14. In essence the appellant was not able to meet the requirements of the Immigration Rules under Appendix A because they required that he had been awarded his eligible qualification within the 12 month period prior to the date of application. At the date of application the appellant had not yet been awarded his eligible qualification. It had been awarded by the date of decision, but that does not assist. Whilst section 85A of the Nationality, Immigration and Asylum Act 2002 does not prevent a tribunal from considering evidence that was before the Secretary of State when she took the decision, even if post-application, the rule in question in this context required such evidence to relate to an event that had happened prior to the date of application.

 

Fairness

 

15. Mr Hossein for the appellant has submitted that even though the appellant could not succeed under the Immigration Rules, there was patent unfairness such as to make the decision of the Secretary of State not in accordance with the law. That argument was fully explored in Nasim I and rejected for cogent reasons.

 

Article 8

 

16. The First-tier Tribunal considered the appellant’s Article 8 circumstances and concluded that they amounted to a weak human rights claim. Upper Tribunal Judge Lane in the Directions mentioned earlier had directed that any further evidence or submissions relating to Article 8 should be sent at least 7 days before the hearing. Notwithstanding that Direction the appellant’s representatives failed to submit any further evidence in accordance with Directions. Particularly bearing the guidance given in Nasim II, I see no basis for taking a different view of the appellant’s Article 8 circumstances from that taken by the First-tier Tribunal judge.

 

Section 47

 

17. In this case the Secretary of State made a simultaneous s.47 decision. That was not dealt with by the First-tier Tribunal judge or by Upper Tribunal Judge Perkins. Plainly, however, that decision was unlawful and the parties are agreed on that.

 

Disposal

 

18. It follows from what has been said above that the decision of the Upper Tribunal is contrary to binding Court of Appeal authority and cannot stand. I hereby set it aside. Applying the principles set out in Raju and others and subsequently in Nasim I and II, I conclude that the decision I should re-make is to dismiss the appellant’s appeal.

 

19. Accordingly:

 

The decision of the Upper Tribunal is set aside.

 

The decision I re-make is to dismiss the appellant’s appeal except in relation to the section 47 decision which I hold to be not in accordance with the law.

 

Signed

Date:

 

 

Judge of the Upper Tribunal